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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> L.R.C. -v- Refugee Appeals Tribunal & Ors [2014] IEHC 500 (01 October 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H500.html
Cite as: [2014] IEHC 500
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Judgment
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Neutral Citation: [2014] IEHC 500 THE HIGH COURT JUDICIAL REVIEW [2009 No. 142 J.R.] IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), IN THE MATTER OF THE IMMIGRATION ACT 1999 AND IN THE MATTER OF THE ILLEGAL IMMIRGRANTS (TRAFFICKING) ACT 2000 AND IN THE MATTER OF THE EUROPAN CONVENTION ON HUMAN RIGHTS ACT 2003 SECTION 3(1) BETWEEN L. R. C. APPLICANT AND
REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELLAND RESPONDENTS AND
HUMAN RIGHTS COMMISSION NOTICE PARTY JUDGMENT of Mr. Justice Barr delivered the 1st day of October, 2014 1. The applicant and her husband both entered Ireland in April 2000. They both sought asylum in Ireland in 2005. They will be referred to individually as “the wife” and “the husband” in this judgment. Background 3. On 24th August, 1999, the wife was forcibly taken to hospital and permanently sterilised by cutting her fallopian tubes. The applicant and her husband were also charged in relation to the birth of their children. They were fined 8,500 Yuan in respect of the unplanned birth before the legal permitted age and 16,600 Yuan in respect of the second birth in the absence of legal permission. Of the total fines, 11,000 Yuan was paid. 4. Some short time later, the family planning enforcers returned seeking to take the husband for a sterilisation, whereupon the couple fled to Fuzhou City. They were unable to register with the authorities in Fuzhou or anywhere else without the required documentation and were unable to return to the husband’s area to procure the documentation. Their children were left in the care of the husband’s parents. 5. The applicant and her husband fled China on 15th February, 2000, through the aegis of a smuggling gang. They travelled through different destinations over the course of two months, sometimes by plane and sometimes by car. When not travelling, they were kept out of sight. They became separated in the course of the journey. 6. The applicant arrived in Ireland on 23rd April, 2000, while the husband arrived on 28th April, 2000. They lived among the Chinese community and worked in various Chinese restaurants. 7. In 2003, their family put them in touch with an agent, a Chinese national, whom they met in Dublin with a view to procuring legal status for the wife in the UK, with the hope that she would in due course be joined by her husband and children. The wife accompanied the agent to the UK on 28th March, 2003, but was detained at the airport. She recalled being fingerprinted and completing a form with the assistance of an interpreter. The agent then immediately brought the wife back to Ireland by boat, his plan having been unsuccessful. In the event of the agent successfully procuring legal status for the wife in the UK he was to be paid €10,000. 8. The applicant continued working in various Chinese restaurants until detected without identity documents by the gardaí in November 2005. The wife gave evidence at her interview that it was a solicitor who applied for bail and who, having heard their history, advised them to apply for protection in Ireland. The husband stated in his interview that it was friends who suggested that they apply for asylum. 9. The applicants submitted their completed questionnaires on 7th December, 2005, wherein they claimed that if returned to China they would be made an example of by reason of their early marriage and early childbirth; that they would be exposed to wide publicity and regarded as monsters; that the husband would be forcibly sterilised; and that their children would be adversely affected. In response to the query about disability or medical conditions the wife stated that conjugal relations caused her pain as a result of scarring from her sterilisation operation. 10. The applicants were interviewed on 28th August, 2006. Thereafter reports were issued in respect of each applicant pursuant to s. 13 of the Refugee Act 1996 (as amended). In each case the Commissioner recommended that neither applicant be considered a refugee within the meaning of the Refugee Act 1996 (as amended). 11. The husband and wife each lodged appeals against the finding of the RAC. Further country of origin information was submitted with the notice of appeal. As the applicants had not applied for asylum immediately upon arrival in the State, s. 13(6)(c) of the Refugee Act 1996, as amended, applied to the appeal in respect of both applicants. In addition, in respect of the wife, the RAC also recommended that the matter came within s. 13(6)(d). As a result, the appeal was determined on the basis of a papers only appeal with no oral evidence being given. 12. By decisions dated 27th January, 2009, the same member of the RAT issued a decision that the applicants should not be declared refugees within the meaning of the legislation. The applicants have brought these judicial review proceedings against the decisions of the RAT. Membership of a particular social group
… (d) a group shall be considered to form a particular social group where in particular—
(ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society.” 16. The applicants also argue that note should be taken of the UNHCR Guidelines on the International Protection: “Membership of a particular social group” of 7th May, 2002. The Guidelines point out that two approaches have dominated decision making in common law jurisdictions in definition of what constitutes “a particular social group”. The Guidelines dealt with the two approaches in the following way:-
7. The second approach examines whether or not a group shares a common characteristic which makes them a cognizable group or sets them apart from society at large. This has been referred to as the ‘social perception’ approach. Again, women, families and homosexuals have been recognized under this analysis as particular social groups, depending on the circumstances of the society in which they exist. … 10. Given the varying approaches, and the protection gaps which can result, UNHCR believes that the two approaches ought to be reconciled. 11. The protected characteristics approach may be understood to identify a set of groups that constitute the core of the social perception analysis. Accordingly, it is appropriate to adopt a single standard that incorporates both dominant approaches:
13. If a claimant alleges a social group that is based on a characteristic determined to be neither unalterable or fundamental, further analysis should be undertaken to determine whether the group is nonetheless perceived as a cognizable group in that society. So, for example, if it were determined that owning a shop or participating in a certain occupation in a particular society is neither unchangeable nor a fundamental aspect of human identity, a shopkeeper or members of a particular profession might nonetheless constitute a particular social group if in the society they are recognized as a group which sets them apart. The role of persecution 14. As noted above, a particular social group cannot be defined exclusively by the persecution that members of the group suffer or by a common fear of being persecuted. Nonetheless, persecutory action toward a group may be a relevant factor in determining the visibility of a group in a particular society. To use an example from a widely cited decision, ‘while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognizable in their society as a particular social group. Their persecution for being left-handed would create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group’.” 18. The applicant has argued that the case law establishes that for a group to exist, it does not have to be cohesive. It is not necessary for the members of the group to know each other. The size of the group is not relevant. The relevant issue is whether there is a common element that the group shares amongst its members. The applicant must then establish that he fears persecution in his home country by virtue of membership of the particular social group. 19. Turning to the case law, the applicant referred to a number of Canadian, Australian and English cases. In Cheung v. Canada (Minister of Employment and Immigration) [1993] 2 F.C. 314, the applicant had had a son and following his birth she had had an intrauterine device inserted. However, due to difficulty during her menstrual cycle, the applicant had to discontinue the use of the device. Over the next two years she became pregnant three times and had had three abortions. 20. In 1986, the applicant became pregnant again and decided against having a further abortion. She moved to live with her in-laws, so that the authorities in her home province would not learn of the pregnancy as she feared that she would be forced to have another abortion. She gave birth to her daughter. The applicant returned to her home province. She was not able to take her daughter with her. Shortly after returning home, the Family Planning Bureau came to her home and took her away to be sterilised. However, due to an infection, the operation had to be deferred for six months. The applicant fled from her home province to avoid sterilisation. She went back to her parent in-law’s house. 21. Over the next three years, the applicant returned periodically to her home province to visit her son who remained there with his grandparents. In 1989, while visiting her home province, the applicant participated in three demonstrations supporting the pro-democracy movement. Shortly afterwards, following the crackdown in China, the public security bureau visited her parents’ house on a number of occasions. It is unclear however whether these visits were in connection to the applicant or to her brother who participated in demonstrations in Beijing. In any event, it was shortly thereafter that the applicant fled to Canada. 22. In addressing the question as to whether the applicant could be seen as being a member of a particular social group, Linden J.A. made the following remarks:-
(1) a natural or non-natural group of persons with (2) similar shared background, habits, social status, political outlook, education, values, aspirations, history, economic activity or interests, often interests contrary to those of the prevailing government, and (3) sharing basic, innate, unalterable characteristics, consciousness, and solidarity or (4) sharing a temporary but voluntary status, with the purpose of their association being so fundamental to their human dignity that they should not be required to alter it. It is clear that women in China who have one child and are faced with forced sterilization satisfy enough of the above criteria to be considered a particular social group. These people comprise a group sharing similar social status hold a similar interest which is not held by their government. They have certain basic characteristics in common. All of the people coming within this group are united or identified by a purpose which is so fundamental to their human dignity that they should not be required to alter it on the basis that interference with a women's reproductive liberty is a basic right ‘ranking high in our scale of values’ (E (Mrs.) v. Eve, [1986] 2 S.C.R. 388). I find, therefore, that women in China who have more than one child, and are faced with forced sterilization because of this, form a particular social group so as to come within the meaning of the definition of a Convention refugee (Re I. (RR). [1992] C.R.D.D. No. 87). This does not mean, of course, that all women in China who have more than one child may automatically claim Convention refugee status. It is only those women who also have a well-founded fear of persecution as a result of that who can claim such status.”
27. In Re Z.W.D. (Refugee Appeal No. 3/91, 20/10/1992), the court had to determine whether those who had had more than one child could be seen as a particular social group within the meaning of the Convention. The Refugee Status Appeals Authority was of the view that it was impossible to define the group. In the course of the judgment, R.P. Haines Q.C. stated as follows:-
Unless the group is capable of reasonably precise definition, it becomes difficult, if not impossible, to address the balance of the issues. The problem faced by the appellant is that identification of the group on the present facts is virtually impossible. For the group may conceivably be defined in any or all of the following terms: (a) Persons, whether married or unmarried, whether parents or non-parents, who believe the one-child policy to be wrong, whether for political, religious or other reasons. (b) Persons affected by the policy, irrespective of their agreement or disagreement with the policy. (c) Married couples who do not yet have children, but who believe that they should nevertheless have an unrestricted right to procreate and to control their own fertility without interference by the State. (d) Parents per se. (e) Parents who already have one child and who would like to have a second child. (f) Parents who already have one or more children and who believe that there should be no limit to the number of children they can procreate. (g) Anyone who has been required to submit to any form of birth control measure whether by way of abortion, sterilization or otherwise. No doubt different or further formulations are possible. Each formulation may, of course, produce possibly different answers in relation to the two further issues to be addressed. It is our view that a coherent formulation of the group is impossible. The appellant’s case must fail for this reason alone. But we will nevertheless proceed on the alternative basis that it is possible to define the group. We will, for convenience, address the broadest category in para (a) as well as the most narrow category in para (g). Views of the community and of the agent of persecution We have been presented with no evidence to show that the community of which the appellant is a part perceives persons in categories (a) through to (g) to be members of an identifiable social group. The same is true in relation to the government officials who are the relevant agents of persecution. Certainly, individuals who do not comply with official family planning policy would be identified as such, just as persons in any society who fail to obey the law will be identified as lawbreakers. It does not necessarily follow that such persons comprise, and are recognized as comprising a distinct social group within society. The one observation of the 9th Circuit Court of Appeals in Sanchez-Trujillo approved of by Hathaway is appropriate in these circumstances: ‘... the term does not encompass every broadly defined segment of the population, even if a certain demographic division does have some statistical relevance.’ We also return to the succinct observation made by Goodwin-Gill in The Refugee in International Law (1983) 30: ‘The importance, and therefore the identity, of a social group may well be in direct proportion to the notice taken of it by others, particularly the authorities of the state.’ Here, there is no evidence that Chinese society, and more importantly, the authorities of the state, identify or take notice of the individuals concerned as a social group. We believe that the appellant’s case under the social group category must fail on these facts alone.”
The adjoining of ‘social’ to ‘group’ suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large. The word ‘particular’ in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group. A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society. I can see no reason to confine a particular social group to small groups or to large ones; a family or a group of many millions may each be a particular social group. Nor is there anything which would suggest that the uniting particular must be voluntary. To the extent that Sanchez-Trujillo v INS suggests the contrary I do not think it is persuasive. Furthermore, the significance of the element as a uniting factor may be attributed to the group by members of the group or by those outside it or by both.”
On the other hand, claims have been rejected where based on membership of the following groups: the ‘capitalist class’ in a former East European country; an Indian woman who had married out of her caste; members of a recreational club; a person accused of corruption in Ghana; a person who had been a member of an Irish terrorist group and was suspected, in Ireland, of permitting hostages to escape; a Bolivian migrant drug offender fearful of punishment as a drug informant if he were returned to Bolivia; a member of the wealthy Sikh community returning to the Punjab with money which would be subject to the risk of robbery and extortion; an Iranian seaman imprisoned in Australia for importation of illegal drugs liable to further heavy punishment if returned to Iran; and a stepson of a Columbian storekeeper whose shop was blown up by a drugs cartel when he refused to trade for them.” 31. An adjudicator allowed the applicant’s appeal against the rejection by the Secretary of State of her asylum claim, holding that she had a well founded fear of persecution for reasons of her “membership of a particular social group” should she be returned to China, within the meaning of Article 1A(2) of the Convention and Protocol relating to the Status of Refugees. The Secretary of State’s appeal was allowed by the Immigration Appeal Tribunal on the ground that the applicant was not at risk of persecution as a member of a particular social group since the group contended for by the applicant, namely rural woman accused of transgressing the population control policy by choosing to have a third child, did not exist independently of the feared persecution. 32. On the applicant’s appeal, the court held allowing the appeal, that although the general principle that a “particular social group” within the meaning of Article 1(2) of the Convention should exist independently of the feared persecution had an important role to play, it was qualified in that the actions of the persecutors might serve to identify or even cause the creation of, a particular social group in society; that it was not possible to be satisfied that the Appeal Tribunal had considered that qualification to the general principle, and that, accordingly, the case would be remitted to a differently constituted the Appeal Tribunal for rehearing. 33. In the course of his judgment, Maurice Kay L.J. cited the following passage from the textbook “the Refugee in International Law” by Goodwin-Gill:-
35. He noted that Chan v. Canada (Minister of Employment and Immigration) (128 DLR (4th) 213) concerned essentially the same issue, but from the point of view of the husband who faced sterilisation. On that occasions, the Canadian Court of Appeal decided by a majority that the husband’s case failed, first, because he had not shown a well founded fear of sterilisation on the facts; and secondly, because, were he to be so persecuted, it would have been for what he did, not for what he was, and he could not, therefore, establish persecution by reason of membership of a particular social group. 36. On appeal to the Canadian Supreme Court, the decision in Chan was upheld by a majority of four to three, but only on the facts. For these purposes, the majority were prepared to assume, without deciding that on the issue regarding membership of a particular social group, that Cheung’s case (and not the Court of Appeal in Chan’s case) gave the correct answer. The minority, however, in a judgment delivered by La Forest J., built on Canada (Attorney General) v. Ward [1993] 2 SCR 689 and Cheung’s case in focusing again on the question whether “the appellant is voluntarily associated in a manner so fundamental to his human dignity that he should not be required to forsake it”. 37. In concluding that issue in the appellant’s favour, La Forest J. rejected the distinction between what a parent does and is. Having reviewed the Australian case law, Rix L.J. then continued:-
‘where it was said that a social group for the purposes of the Convention was one distinguished by:
The second strand relates to how the characteristic and thus the particular social group in question may be identified. It may be identified by discrimination and even in part by means of discrimination amounting to persecution: but that will not matter as long as such persecution is not the sole means of definition or identification. It may be identified by the recognition or perception of the surrounding society in general that the group in question shares a particular characteristic. Or it may be that the distinguishing characteristic and thus the group in question may simply be objectively observable, irrespective of the insight of the general society in which it is placed. It may be said that these concepts have not yet been fully worked out in the jurisprudence.”
44. On appeal by the applicants, it was held, in allowing the appeals, that a “particular social group” within the meaning of Article 1A(2) of the Convention had to exist independently of the persecution so that persecution alone could not be relied on to prove the group’s existence but that cohesiveness was not an essential requirement (per Lord Steyn, Lord Hoffman and Lord Hope of Craighead). It was held that in Pakistan women were discriminated against as a group in matters of fundamental human rights and the State gave them no protection because they were perceived as not being entitled to the same human rights as men. The court thus concluded that women in Pakistan constituted a particular social group for the purposes of Article 1A(2) that (per Lord Steyn and Lord Hutton). It was also held that the applicants belonged to a “particular social group” which was more narrowly defined by the unifying characteristics of gender, of being suspected of adultery, and lacking protection from the State and public authorities: that although not all members of the group were persecuted, the applicant’s well founded fear of persecution, which was sanctioned or tolerated by the State, was for reasons of membership of a particular social group and that accordingly, they were entitled to asylum under the Convention. 45. Lord Steyn had the following to say in relation to the words “membership of particular social group”:-
‘". . . If it were otherwise, Art. 1(A)(2) would be rendered illogical and nonsensical. It would mean that persons who had a well founded fear of persecution were members of a particular social group because they feared persecution. The only persecution that is relevant is persecution for reasons of membership of a group which means that the group must exist independently of, and not be defined by, the persecution…’ In other words relying on persecution to prove the existence of the group would involve circular reasoning. It is therefore unsurprising that counsel for the appellants and counsel for the United Nations High Commissioner for Refugees (UNHCR) accept the general principle that there can only be a ‘particular social group’ if it exists independently of the persecution.”
The narrower group If I had not accepted that women in Pakistan are a ‘particular social group’, I would have held that the appellants are members of a more narrowly circumscribed group as defined by counsel for the appellants. I will explain the basis of this reasoning briefly. It depends on the coincidence of three factors: the gender of the appellants, the suspicion of adultery, and their unprotected position in Pakistan. The Court of Appeal held (and counsel for the Secretary of State argued) that this argument falls foul of the principle that the group must exist independently of the persecution. In my view this reasoning is not valid. The unifying characteristics of gender, suspicion of adultery, and lack of protection, do not involve an assertion of persecution. The cases under consideration can be compared with a more narrowly defined group of homosexuals, namely practising homosexuals who are unprotected by a state. Conceptually such a group does not in a relevant sense depend for its existence on persecution. The principle that the group must exist independently of the persecution has an important role to play. But counsel for the Secretary of State is giving it a reach which neither logic nor good sense demands. In A. v. Minister for Immigration and Ethnic Affairs 142 A.L.R. 331, 359 McHugh J. explained the limits of the principle. He said: ‘Nevertheless, while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society. Left-handed men are not a particular social group. But, if they were persecuted because they were left-handed, they would no doubt quickly become recognisable in their society as a particular social group. Their persecution for being left-handed would create a public perception that they were a particular social group. But it would be the attribute of being left-handed and not the persecutory acts that would identify them as a particular social group.’ The same view is articulated by Goodwin-Gill, The Refugee in International Law, 2nd ed., (1996) at p. 362. I am in respectful agreement with this qualification of the general principle. I would hold that the general principle does not defeat the argument of counsel for the appellants.”
(a) women in general and/or vulnerable women in respect of rape; (b) a woman who has been the subject of sexual violence in the past in respect of a subsequent gun attack, and (c) women with HIV. It is submitted that HIV positive women in South Africa constitute a particular social group and that the Tribunal neither considered this nor whether this was a particular social group. The applicant relies on a number of authorities including Shah and Islam regarding the proper approach to a particular social group wherein discrimination is isolated as the key factor. In the case of Skenderai v. Home Secretary [2002] 4 All ER 555 Auld L.J. summarised the authorities as concluding that membership of a particular social group included: 1. some common characteristic either innate or which by reason of conviction or relief cannot readily be changed 2. shared or internal defining characteristics giving particularity though not necessarily cohesion to the group 3. (subject to possible qualification) a characteristic other than a shared fear of persecution, and 4. (subject to possible qualification) in non-state persecution cases, a perception by society of the particularity of the social group. … On behalf of the respondent it is submitted that the proposition advanced by the applicant herein is misconceived and contrary to the accepted view as expressed in Shah that it is a general principle that there can only be a ‘particular social group’ if the group exists independently of the persecution. Ms. Stack B.L. puts the position succinctly where she states that while persecution cannot define the social group it may serve to identify it. However the social group must exist independently of the persecution. In this case because the group is defined by reference to rape it is submitted that the applicant is engaged in circular reasoning which was rejected by the House of Lords in Shah. The necessary element or litmus test is that there must be discrimination. Counsel adds that while it is true that women are more likely to be the victims of sexual violence, that does not mean that women in South Africa are more likely to the victims of sexual violence because they are women.”
I consider that the grounds upon which leave should be granted should be considerably narrowed to read: ‘The first named respondent failed to take into account adequately or at all the fact or significance of the applicant's status as an HIV positive person in the consideration of persecution in the future and as to her membership of a particular social group in the consideration of whether State protection was available to her.’” 49. Applying the various dicta in the case law already cited herein, it seems to me that it is arguable that the applicant could be seen as being part of a particular social group. The applicant and her husband can be seen as part of a social group defined as people who, contrary to the one child policy in China, have had more than one child without permission. The shared characteristic is that they are parents of more than one child born in China without official permission. This characteristic cannot be changed by the applicants. In that capacity, it is arguable that they face persecution in the form of forced sterilisation (already carried out on the wife and threatened against he husband); large fines; loss of employment; and discriminatory treatment such as discrimination in relation to medical and educational benefits. 50. In the present case there was a large amount of country of origin information submitted on behalf of the applicant, both to the RAC and on appeal to the RAT. The RAT appears only to have had regard to one piece of COI on the basis that it dealt with Fugian province. This was the UK Home Office Report of April 2002 which was attached to the s. 13 report. Where COI documentation is submitted, it must be looked at and incorporated into the decision of the Tribunal, even if only reject the documents, but the reasons for so rejecting the documentation should be clearly stated. In this case, the remainder of the COI documentation was ignored by the RAT. It is necessary to refer the matter back to the RAT for further consideration of the applicant’s claim in light of the all the documentation submitted. The RAT will have to reconsider in the light of all the COI submitted whether the applicant and her husband are refugees owing to the fact that they fear persecution by reason of their membership of a particular social group. Credibility Findings 52. The RAT was also critical of the fact that the applicants could not provide more information of their journey to Ireland and found that as they had left China by plane, they should be been aware at least of their initial destination. 53. The RAT was also critical of the fact that the wife had said that she had not applied for asylum in any other country. She stated that she did not know that she had filled in an asylum application form in the UK in 2003. The RAT was of opinion that she should have known this, as she had been provided with an interpreter to help her fill out the form. 54. The Tribunal was also entitled to seek a good explanation as to why the applicants had waited over five years before applying for asylum in Ireland. Indeed, this step was only taken after they had come to the attention of the gardaí in 2005. In her questionnaire, the wife stated that when the couple were caught in Killarney in 2005, it was the solicitor who helped them get bail who advised them to apply for protection in this country because of their background. 55. I am satisfied that there was evidence on which the RAT was entitled to reach adverse credibility findings against the applicants. However, the applicants have argued that these findings were in relation to peripheral aspects of their claim. They pointed out that in relation to the core of their story, being the birth of their two sons and the forced sterilisation of the wife, their account had stood up to scrutiny and had been supported by case specific documentation including the marriage certificate, birth certificate, children’s birth certificates, maternity hospital receipt, receipt for paying fine for second child, notification of fine for the second child, and a working certificate. In the circumstances, I am satisfied that the applicant’s lack of credibility related not to their core story, but to peripheral aspects of their account. 56. In the circumstances, I will quash the decision of the RAT dated 27th January, 2009, and direct that the matter be referred back to the Tribunal for a fresh determination in light of the COI submitted on behalf of the applicant. |